The People of the State of New York, Respondent, v. Tyler Mitchell, Appellant

The People of the State of New York, Respondent, v Tyler Mitchell, Appellant. [702 NYS2d 568] [MAJORITY] —Appeal by the defendant from a judgment of the County Court, Westchester County (LaCava, J.), rendered November 13, 1997, convicting him of murder in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and sentencing him to an indeterminate term of imprisonment of 25 years to life on the conviction of murder in the second degree and a determinate term of imprisonment of one year on the conviction of criminal possession of a weapon in the fourth degree, to run concurrently with the other sentence. Ordered that the judgment is modified, by reducing the minimum term of imprisonment imposed for murder in the second degree to 20 years; as so modified, the judgment is affirmed. The defendant’s contention that the evidence was legally insufficient to establish his guilt of depraved indifference murder is unpreserved for appellate review (see, CPL 470.05 [2]; People v Stahl, 53 NY2d 1048; People v Tallarine, 223 AD2d 738; People v Padro, 75 NY2d 820; People v Grossfeld, 216 AD2d 319). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]). However, the sentence is excessive to the extent indicated. Ritter, J. P., S. Miller, Florio and H. Miller, JJ., concur.